In an editorial today, the Washington Times takes federal Judge Michael M. Mihm to task for showing “mercy” to convicted terrorist Ali al-Marri by sentencing him to 8 years of prison instead of the 15 years that the judge could have sentenced him to.

What the Times describes as “mercy” is the judge’s decision to give al-Marri credit for the 6 years he already had served in military incarceration during the time that the feds were labeling him an “enemy combatant.”

In other words, when you add up the total amount of time that al-Marri has been incarcerated by U.S. officials, including the time he served in a civilian jail prior to the time they converted him to an “enemy combatant,” you get the 15 years that the judge could have sentenced him to.

The Times must know that it is not unusual for criminal defendants to be given credit for time served prior to a criminal conviction. To consider a judge’s decision to give a criminal defendant credit for time served prior to sentencing as “mercy” is ridiculous. The fact is that military incarceration is incarceration and, in fact, it’s much worse than civilian incarceration. It encompasses torture, isolation, denial of counsel, denial of trial, and denial of due process of law, all of which al-Marri was subjected to.

The Times also failed to point out something important here. What the feds did to al-Marri they now have the post-9/11 power to do to every American. All they have to do is issue the label — enemy combatant — on any particular American, including critics and dissidents, and they can sock him away in a military dungeon for the rest of his life. If the American files a habeas corpus petition, all the feds have to do is provide a modicum of evidence to support their enemy-combatant claim.

And no, they don’t have to convert him to a civilian defendant, as they did with al-Marri. That was entirely a discretionary decision on the part of the feds. If they had wanted to, they could have kept al-Marri in that military dungeon for the rest of his life. For that matter, their post-9/11 power enables them to re-take al-Marri into custody as soon as he serves his 8-year sentence and keep him in that military dungeon forever.

What the Times editorial also fails to address is the clear violation of the principle of the rule of law here, a principle that conservatives often pay lip service to. After 9/11, the feds assumed the power to treat suspected terrorists in two alternative, optional, discretionary ways, each of which has dramatically different consequences.

On the one hand, they can now treat suspected terrorists as “enemy combatants,” which can entail permanent military incarceration, torture, kangaroo tribunals, denial of due process, and denial of trial by jury.

On the other hand, they can treat suspected terrorists as criminal defendants, which will entail federal courts, trial by jury, due process of law, and the Bill of Rights.

The choice lies entirely with the feds. In fact, that’s why al-Marri got both treatments — first as a criminal defendant, then as an “enemy combatant,” and then again as a criminal defendant. It’s all discretionary.

It would be difficult to find a better example of a violation of the rule of law than that, but conservatives obviously see no problem with that, notwithstanding their oft-repeated mantras about the importance of the rule of law.

The Times editorial finishes up with a scary warning about how closing down Guantanamo Bay and bringing its prisoners to the United States will mean that more federal judges “have the opportunity to make mistakes that put us all at risk.”

The only reason that the Pentagon set up its prison camp and new “judicial” system in Cuba was to provide the feds an optional, discretionary way to avoid the due-process provisions of the Bill of Rights when it comes to criminal cases involving terrorism. For all too long, conservatives have denigrated those parts of the Bill of Rights as “technicalities” that let guilty people go free. Only time will tell whether the feds extend their self-assumed discretionary power to drug-war cases, insider-trading cases, and other federal crimes to the military. No doubt conservatives will be cheering them on.

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education.
He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at
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Jacob G. Hornberger

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.